| Palmer v WSC Riverside Dr., LLC |
| 2009 NY Slip Op 03391 [61 AD3d 589] |
| April 28, 2009 |
| Appellate Division, First Department |
| Robert Palmer, Respondent, v WSC Riverside Drive, LLC,et al., Appellants. |
—[*1] Jack L. Lester, New York, for respondent.
Judgment, Supreme Court, New York County (Lottie E. Wilkins, J.), entered July 30, 2008,dismissing this action seeking declaratory and other relief after nonjury trial, unanimouslymodified, on the law, to declare plaintiff has no leasehold possessory rights to the roof area, andotherwise affirmed, with costs in favor of defendants.
The scope of our review of a nonjury trial is as broad as that of the trial judge (NorthernWestchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]), andpermits us to substitute our own judgment where the evidence fails to support an importantelement of the trial court's findings (Jossel v Filicori, 235 AD2d 205, 206 [1997]). Thetrial court limited its declaration to stating that plaintiff was entitled to possession of the entireapartment under the current lease, and found an ambiguity as to whether this included theadjacent outdoor area, thus sidestepping the issue of rights thereto. This was due to a dearth ofevidence that defendant WSC, the shareholder in the cooperative and holder of the proprietarylease appurtenant to the apartment, had any rights to the roof area.
There was no ambiguity in the lease, which controls the parties' rights and obligations. Thelease referred only to the "Apartment," not the roof, except in a standard-form provision in theattached rules prohibiting tenants from drying their clothes there (see Hazlett v Rahbar,27 AD3d 384 [2006]). Nothing in the admitted documents or the parties' conduct allows aninterpretation permitting plaintiff to use the roof/terrace area (see 1050 Fifth Ave. vMay, 247 AD2d 243 [1998]; Jossel, 235 AD2d at 206).
In an action for declaratory judgment, where a disposition on the merits is against grantingcertain relief, the court should make a declaration rather than simply dismissing that aspect of thecomplaint (Hirsch v Lindor Realty Corp., 63 NY2d 878 [1984]; see also Real Bidderv St. Luke's-Roosevelt Hosp. Ctr., 254 AD2d 123 [1998]). Accordingly, we declare thatplaintiff has no possessory rights under the lease to the roof area.[*2]
We have considered the balance of plaintiff's argumentand find it unavailing. Concur—Mazzarelli, J.P., Andrias, Nardelli, Catterson andDeGrasse, JJ.